Goosling v. Varney's Trustee

• Decision Date: 07 May 1937
• Citation: 268 Ky. 394
• Parties: Goosling et al. v. Varney's Trustee et al.
• Court: United States State Supreme Court — District of Kentucky

268 Ky. 394

Goosling et al. v. Varney's Trustee et al.

Court of Appeals of Kentucky.

Decided May 7, 1937.

1. Judgment. — Daughter, whose bankruptcy trustee the bankruptcy court had directed to collect and pay royalties under mining leases executed by testator, to daughter's liability on kinsman's fiduciary bond, and who did not allege that she was not duly summoned in prior action, could not assert, in minor grandchildren's suit to recover royalties, that prior judgment directing payment of royalties to daughter was not binding because will had not been correctly construed in prior action, and that daughter was not liable on fiduciary bond because of fraud in procurement of her signature thereto, since defense of fraudulent procurement should have been presented in bankruptcy court.

2. Infants. — Assertion of testator's minor grandchildren, suing to recover royalties under mining lease executed by testator, that prior judgment directing payment of royalties to testator's widow and daughter was not conclusive because of failure to summon grandchildren in prior action and because of invalidity of prior judgment due to defective affidavit for appointment of guardian ad litem, was "collateral attack" on judgment, as respects whether judgment was res judicata in grandchildren's suit.

3. Infants. — Judgment in prior action, directing payment of royalties under mining leases executed by testator to wife and daughter and not to minor grandchildren, could not be collaterally attacked in grandchildren's subsequent suit to recover royalties, on ground that prior judgment was invalid because of defective affidavit for appointment of guardian ad litem under statute (Civil Code of Practice, sec. 38, subsec. 1).

4. Judgment. — Person collaterally attacking judgment must sustain grounds of attack by competent testimony.

5. Judgment. — Judgment collaterally attacked is presumptively valid.

6. Judgment. — Presumption that judgment collaterally attacked is valid must be overcome by person making attack by convincing proof.

7. Judgment. — Person collaterally attacking judgment on ground of silence of record on requisite jurisdictional facts must overcome presumption in favor of jurisdiction before attack can succeed.

8. Judgment. — Former judgment, directing payment of royalties under mining leases executed by testator to widow and daughter and not to minor grandchildren, held bar to maintenance of grandchildren's suit to recover royalties, notwithstanding silence of record in former action as to service of summons on grandchildren, in absence of affirmative evidence overcoming presumption of service of summons.

Appeal from Pike Circuit Court.

WILLIS STATON for appellant Geo. Pinson, Jr., executor.

K.L. VARNEY for appellant Nancy Jane Varney.

J.C. CANTRELL for appellants Lucy Ellen Goosling et al.

HARMAN & HOBSON for appellee Leckies Collieries Co.

J.J. MOORE and STRATTON & STEPHENSON for appellee W.K. Elliott.

O.T. HINTON for appellee Norfolk & W.R. Co.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

On March 20, 1914, Alex Varney, a citizen and resident of Pike county, Ky., executed his last will and testament appointing appellant George Pinson, Jr., executor thereof. He died on April 11, 1919, slightly more than five years after executing it. It was thereafter regularly probated in the Pike county court and the appointed executor qualified. The testator was the owner of a considerable quantity of real estate in Pike county, much if not all of which was underlaid with marketable coal. After the execution of the will and, of course, before his death, he gave three coal leases to different lessees, and two of them opened up mining operations before his death; the third one not doing so until after his death.

By the first clause of the testator's will he directed his debts paid by his executor. By the second clause he gave to his wife, Pricy A. Varney, all of his personal property and then said: "And I also give and bequeath unto my beloved wife, Pricy A. Varney all of my real property situated in Pike County, Kentucky, and on the waters of Pond Creek during her natural life, if she should survive me, and after her death to descend as provided in clause 3 hereof." In that (third) clause he directed: "After the death of my beloved wife, Pricy A. Varney, if she should survive me, I give and devise unto my daughter, Nancy Jane Goosling, for and during her natural life, all of my said real estate, and at her death to her children in fee." By clause No. 4 he directed that if he should survive his wife, then his daughter, Nancy Jane Goosling, should take all of his personal property absolutely and also his real estate for her life "and at her death to her children in fee." By the sixth clause he empowered and authorized his executor to lease any or all of his coal property for mining purposes and empowered and authorized him to collect the royalties arising therefrom, and then said: "And if such lease is made by such executor or either of them, then and in that event I direct that my said executors pay to my said daughter, Nancy Jane Goosling from time to time such sums of money that they or either may deem necessary for the comfortable support of my said daughter, Nancy Jane Goosling, and her children, and that the residue thereof, if any, arising from said lease shall be held in trust by my said executor and paid to the said children of my said daughter, Nancy Jane Goosling as they arrive at the age of twenty-one years." Other clauses of the will, not herein specifically referred to, have no bearing upon the questions involved.

On January 24, 1921, the appointed and qualified executor filed an equity action in the Pike circuit court against the widow of the testator, his daughter, and the latter's three children — who were infants under fourteen years of age — asking and praying for a construction of the will, and especially asked for directions with reference to these questions, (a) who had the right to collect the royalties arising from the coal leases given by the testator before his death, i.e., whether he or the current life tenant possessed such right; and (b) who was entitled to such fund after it was collected? The case was practiced and prepared for, and was later submitted, and the court adjudged that the widow was entitled to collect the royalties from the three leases referred to during her life, and to appropriate all of them to her individual use; that after her death the daughter was entitled to do likewise; and that after her death the royalties became the property of the daughter's three infant children. An appeal was duly prosecuted to this court from that judgment and it was affirmed in the case of Goosling et al. v. Pinson, Jr., Executor, et al., decided on March 2, 1923, and reported in 198 Ky. 57, 248 S.W. 248. After that opinion was rendered he daughter of the testator obtained a divorce from her husband and in which she was given the custody of their three infant children.

Following that the widow, Pricy A. Varney, and the testator's daughter — both of them then being unmarried — signed a fiduciary bond of a kinsman, W.P.T. Varney, who was cashier of the Day & Night Bank of Williamson, W. Va., whereby they obligated themselves to it to make good any defalcations of their principal. He later became involved in his accounts, and his two sureties (the widow and the daughter of the testator) became liable to the bank for a large sum of money — amounting in the aggregate to something in the neighborhood of $140,000. They thereupon filed their voluntary petitions in bankruptcy in the proper federal court in West Virginia, in which they listed as a part of their assets their respective royalty rights acquired under the will of the husband and father, Alex Varney (the testator), and the court directed its appointed trustee to collect the royalties and appropriate them to the payment of the debts of the two bankrupts — chief among which was their surety liability to which we have referred. Thereafter, the lessees paid the royalties due under their respective leases to the trustee in bankruptcy as directed by the bankruptcy court, until this suit was filed in the Pike circuit court by the three infants through their statutory guardian, A.M. Varney, against the executor of Alex Varney's will, the daughter, Nancy Jane Varney (she having been restored to her maiden name upon obtaining her divorce), and the respective lessees under the three leases the testator made before his death, seeking to recover for the infants against the lessee defendants the entire royalties accruing since the death of the testator.

In their petition they alleged that a proper construction of the will of Alex Varney gave to them such royalties, subject to amounts necessary for the comfortable support of testator's widow and his daughter, and that they had received no part of the royalties although demanded of the lessees, but which they refused to pay. The petition utterly ignored the prior proceedings to which we have referred; but defensive pleadings not only manifested that fact but relied on the judgment therein rendered as a bar to plaintiff's right to recover in this action. The executor interpleaded and appears to have taken a position directly contrary to the determination we made in the prior case; whilst the trustee in bankruptcy, and the lessees, not only relied upon the former judgment in bar of plaintiffs' right to recover, but also contended in their defensive pleadings that the interpretation given the will of Alex Varney in our 198 Ky. opinion, supra, was and is the correct one.

Among the avoidances (contained in replies and other pleadings) of the res adjudicata effect of the former judgment, the infants by their guardian pleaded that the judgment, in so far as they were concerned, was and is void because they were not summoned therein, and that the affidavit for the appointment of a guardian ad...